95 Mo. 118 | Mo. | 1888
This is an action of ejectment, the petition being in the ordinary form to recover from defendants the possession of a house and lot situated in North St. Louis, Missouri. The answer sets up the statute of limitations, and also an equitable defence, in substance
Plaintiff read in evidence at the trial, the record title, which was formal and regular, and consisted of a deed of trust from Hymers to Lange and Leise for the
The case was tried by the court, without the aid of a jury, and the following action had, upon declarations of law. At the instance of plaintiff, the court gave those numbered one and four as follows :
“1. If the court believes from the evidence that Hymers gave the property in question to defendants, or one of them, to have and enjoy the same during life, and that plaintiff had no notice of such gift prior to its purchase, then such gift is no defence to plaintiff’s claim.”
“4. If defendants knew that Hymers, on the. strength of his record title to the lot in question (and which was claimed by defendants as their own, under a parol gift from Hymers), contracted a loan from another party, (who knew nothing of defendants’ claim), to secure said loan, executed a deed of trust on said lot, without*123 objecting thereto, or without taking any means to remove the cloud on their title, caused by. the existence of the record title, and if plaintiff purchased said lot at a sale, under such deed of trust of Hymers, then said defendants are equitably estopped from asserting any claim against said plaintiff for said lot.”
The court also gave at the instance of defendants the following:
“If the jury believe from the evidence, that Hymers gave the property in question to Mrs. Sarah J. Fife, and delivered the jmssession of the premises-described in the petition to the defendant, Sarah J..Fife,. and at the time promised to convey the same to her, and that defendants went into possession, claiming title according to such gift, and that such possession continued for a period of over ten years before the filing of the petition in this cause, and that such possession was notorious, visible, and actual for that period, then the court declares that said possession is adverse, and the jury should find for defendants.”
Of its own motion the court also gave the following:
“5. If the court finds that the deed of trust referred to in instruction number four, was made and executed by Hymers without the knowledge* or assent, of the defendants, then the fact that the defendant took no action to contest the validity of said deed of trust, or to remove the cloud upon her title, after she discovered the execution of said deed of trust, will not prejudice her defence under the statute of limitations.”
The court refused to give instructions numbered two and three, asked by plaintiff, and as follows :
“2. If the court believe from the evidence, that Hymers had, in 1872,. the record title to the lot in question, and in that year gave the same by parol to Mrs. Fife, and that in pursuance thereof he delivered possession thereof to her; yet, if a few months thereafter, said Hymers, for a valuable consideration,, executed the deed'*124 ■of trust read in evidence, by which, said property was ■conveyed to secure the payment of a certain loan, and that said deed of trust was duly recorded, and defendants knew of this shortly after such execution, but took no steps to contest the validity of the same; and if plaintiff, afterwards, on the strength of such record title, and without notice of defendants’ claim, advanced to said Hymers a large amount of money, which was partially used in taking up said deed of trust, and took from said Hymers his other deed of trust on this and •other property to secure the payment of its loans so made, and if all other property has been sold under •said deed of trust and did not bring sufficient to pay said loans, and if the lot in question was also sold after :all other property was exhausted under the terms of ■said deed of trust, and plaintiff became the purchaser at •such sale, then plaintiff is entitled to recover, although defendants may have been in adverse and uninterrupted possession for ten years prior to the commencement of this action.”
“3. The court instructs that the statute of limitations constitutes no defence to this action, as against plaintiff.”
The trial court found upon the various issues as follows : (1) That defendant, Mrs. Pife, held the property in •question, as absolute donee of the fee from said Hymers ; ■(2) that Mrs. Fife’s merely equitable claim could not, however, prevail against the plaintiff, for the reason that plaintiff is not shown to have had notice of defendant’s ■equitable title, but bought in good faith, for value and without notice from Hymers who had the record title ; ■(3) that defendant has acquired title, under the statute •of limitations; (4) that the equitable defence set up in the answer does not operate as a waiver of the statute of limitations also set up in the answer.
I. The finding of the court upon the issue whether ■the said gift was absolute and in fee, or conditional and
II. On the issue whether the plaintiff is chargeable with actual notice of the defendants ’ claim of title under the facts of the case, the court found for plaintiff, and that question may, we think, be waived, as the case was disposed of in the trial court, upon the theory that the defendants had acquired the legal title, under the statute of limitations, and, as we think this ruling of the trial court must be sustained, under the facts of the case, we do not deem it necessary to pass on the question of actual notice, and, therefore, waive the same.
III. The defendants had been in the actual, open, and notorious possession of the property for some twelve years prior to the filing of this suit, and the whole question on this branch of the case is, whether, under the facts, of the case, their said possession was adverse, within the meaning of the law. Where an absolute and unqualified donee in fee takes possession of lands under a parol gift, his possession is thenceforth adverse to the donor. Authorities are numerous to that effect, and among others, the case of Rannells v. Rannells, 52 Mo. 109, where it is said that the donee is to be regarded as holding adversely to the donor, “from the very inception of her entry under the parol gift.”
In the case at bar, it is claimed, however, that defendants are to be regarded as holding permissively and in •subordination to Hymers, and not adversely, for the reason that Hymers paid the taxes up to 188Í, executed the mortgage to Mills in N ovember, 1872, demanded rent •of defendants in 1881 before the ten years had expired, and again in 1880, executed the trust deed under which' plaintiff claims, and for the further reason that defendants took no affirmative action to obtain a deed for the property.
So, too, with reference to the deed of trust under which plaintiff claims. At the date thereof, the defendant had not acquired the legal title, under the statute of limitations, for the ten years had not run in 1880 or 1881, and her equitable claim of title under the parol gift and possession would not have prevailed against the plaintiff holding under the trust deed, if, as the court found, the plaintiff was not chargeable' with actual notice of defendant’s equitable claim. Defendant was not, we think, bound to take such affirmative action to obtain a deed, and whilst no effort was made to disturb her possession, she might continue to hold and claim the same, under said gift, openly, notoriously, and
IY. A further claim in plaintiff’s behalf, in substance, that the defence of the statute of limitations-was waived by the equitable claim of title set up in the answer, remains to be noticed briefly. The case of Adair v. Adair, 78 Mo. 630, cited in support of this position, is, we think, not applicable. In that case, the vendee’spossession, when taken, was not adverse to the vendor, the contract of purchase being executory. The legal title was reserved by the vendor until the payment of the purchase money, and until such payment by the vendee, his possession was not adverse. In the case-before us, the possession, of Mrs. Pife was adverse from the beginning. After taking possession, there was nothing more to be done on her part. Her right to the deed immediately arose, and the statute of limitations began at once to run in her favor.
There are some other questions presented, but none-that would change the result, and they are, therefore, not discussed. This leads to an affirmance of the judgment of the trial court, and it is accordingly so- ordered,,